A Mixed Bag for Habeas Petitioners (2)

Posted Tue, April 5th, 2005 10:37 am by left_blank

While the Johnson decision deals with the habeas statute for federal prisoners, last week's ruling in Rhines v. Weber (03-9046) addressed the consequences of AEDPA's statute of limitations on state prisoners seeking federal habeas corpus review. Rhines concerned a "mixed petition" for habeas corpus"”one that contains both claims that the state courts have reviewed (called "exhausted claims") and claims presented for the first time in federal court ("unexhausted claims").

The specific issue in Rhines was whether a district court faced with a "mixed petition" could grant the habeas petitioner a "stay" and hold the petition in "abeyance" until the petitioner first sought review of his "unexhausted" claims in state court. Under the Supreme Court's decision in Rose v. Lundy, 455 U.S. 559 (1982), state prisoners are required to demonstrate "total exhaustion" of their claims before they get their day in federal court. The sticking point"”and the reason the case is important"”is that AEDPA's one-year limitations period will forever close the doors of the federal courts to many prisoners forced to return to state court to present their unexhausted claims. Simply put, by the time they get back to federal court, the one-year time limit will have expired.

In Rhines' case, the Eighth Circuit applied its rule that AEDPA barred district courts from adopting the "stay and abeyance" procedure and vacated a district court order staying Rhines' habeas petition. In an opinion by Justice O'Connor, the Supreme Court vacated and remanded. Rejecting the Eighth Circuit's rule, the Court held that the "stay and abeyance" procedure was available to district courts, but only in the limited situations where the petitioner can demonstrate both "good cause" for failing to present his claims to the state court and that those claims are not "plainly meritless." O'Connor said that routine application of the procedure might undermine the "twin purposes" of AEDPA"”"encouraging finality" and "streamlining federal habeas proceedings""”and the procedure should be used with those purposes in mind. But she recognized that a complete bar would place many habeas petitioners in the precarious predicament caused by the "interplay" between the "total exhaustion" requirement and AEDPA's one-year statute of limitations

In a one-paragraph concurrence, Justice Stevens emphasized that the Court's "good cause" requirement should not be read as an inflexible "trap" for the "unwary pro se petitioner." Concurring in part and in the judgment, Justice Souter argued that district courts should refuse to use the stay and abeyance procedure only where the prisoner engages in "intentionally dilatory litigation tactics." Ginsburg and Breyer joined both of the concurring opinions.

Both the Rhines and Johnson decisions will likely require, as Justice Kennedy predicted in his Johnson dissent, "further litigation before [their] operation is understood." The Court articulated familiar-sounding standards"”"due diligence" in Johnson and "good cause" in Rhines; nevertheless, the application of these standards to the post-AEDPA habeas context is far from clear. Whatever their long-term reach, both decisions will likely have at least one immediate effect: complicating the lives of many of the nation's federal district court judges.

On Thursday, the justices met for their May 23 conference; John Elwood's Relist Watch compiles the petitions that were relisted for this conference.

Major Cases

Department of Commerce v. New York(1) Whether the district court erred in enjoining the secretary of the Department of Commerce from reinstating a question about citizenship to the 2020 decennial census on the ground that the secretary’s decision violated the Administrative Procedure Act, 5 U.S.C. 701 et seq; (2) whether, in an action seeking to set aside agency action under the APA, a district court may order discovery outside the administrative record to probe the mental processes of the agency decisionmaker -- including by compelling the testimony of high-ranking executive branch officials -- without a strong showing that the decisionmaker disbelieved the objective reasons in the administrative record, irreversibly prejudged the issue, or acted on a legally forbidden basis; and (3) whether the secretary’s decision to add a citizenship question to the decennial census violated the enumeration clause of the U.S. Constitution.

Lamone v. BenisekIn case in which the plaintiffs allege that a Maryland congressional district was gerrymandered to retaliate against them for their political views: (1) whether the various legal claims articulated by the three-judge district court are unmanageable; (2) whether the three-judge district court erred when, in granting plaintiffs’ motion for summary judgment, it resolved disputes of material fact as to multiple elements of plaintiffs’ claims, failed to view the evidence in the light most favorable to the non-moving party, and treated as “undisputed” evidence that is the subject of still-unresolved hearsay and other evidentiary objections; and (3) whether the three-judge district court abused its discretion in entering an injunction despite the plaintiffs’ years-long delay in seeking injunctive relief, rendering the remedy applicable to at most one election before the next decennial census necessitates another redistricting.

The American Legion v. American Humanist Association(1) Whether a 93-year-old memorial to the fallen of World War I is unconstitutional merely because it is shaped like a cross; (2) whether the constitutionality of a passive display incorporating religious symbolism should be assessed under the tests articulated in Lemon v. Kurtzman, Van Orden v. Perry, Town of Greece v. Galloway or some other test; and (3) whether, if the test from Lemon v. Kurtzman applies, the expenditure of funds for the routine upkeep and maintenance of a cross-shaped war memorial, without more, amounts to an excessive entanglement with religion in violation of the First Amendment.

Gamble v. United StatesWhether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.

Recent Decisions

Herrera v. Wyoming Wyoming’s statehood did not abrogate the Crow Tribe’s 1868 federal treaty right to hunt on the “unoccupied lands of the United States”; the lands of the Bighorn National Forest did not become categorically “occupied” when the forest was created.

Merck Sharp & Dohme Corp. v. Albrecht “Clear evidence” that the Food and Drug Administration would not have approved a change to a drug’s label – thus pre-empting a state-law failure-to-warn claim – is evidence showing that the drug manufacturer fully informed the FDA of the justifications for the warning required by state law and that the FDA, in turn, informed the drug manufacturer that the FDA would not approve a change to the drug’s label to include that warning; the question of agency disapproval is primarily one of law for a judge to decide.

Current Relists

Conference of May 23, 2019

al-Alwi v. Trump (1) Whether the government’s statutory authority to detain Moath Hamza Ahmed al-Alwi has unraveled; (2) whether, alternatively, the government’s statutory authority to detain al-Alwi has expired because the conflict in which he was captured has ended; and (3) whether the Authorization for Use of Military Force authorizes, and the Constitution permits, detention of an individual who was not “engaged in an armed conflict against the United States” in Afghanistan prior to his capture.

Box v. Planned Parenthood of Indiana and Kentucky Inc. (1) Whether a state may require health-care facilities to dispose of fetal remains in the same manner as other human remains, i.e., by burial or cremation; and (2) whether a state may prohibit abortions motivated solely by the race, sex or disability of the fetus and require abortion doctors to inform patients of the prohibition.

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On March 30, Justice Clarence Thomas spoke with former clerk Brittney Lane Kubisch and Pepperdine University President-elect James Gash at Pepperdine University School of Law. Thomas told the audience that he had no plans to retire from the Supreme Court.